What to expect from the arrival of paternity leave law
Under draft legislation, new dads must provide proof of fatherhood for pay but not for days off
Draft legislation has been proposed to introduce paternity leave and paternity leave pay. This means that every employee who is hired under a "continuous contract" will be entitled to three days' leave for the birth of each child of which he claims to be the father, with twins treated as one child for this purpose.
The three days can be taken consecutively or separately at any time between four weeks prior to the expected delivery date and up to 10 weeks after the actual birth.
The father has to give his employer notice of his intention to take paternity leave on a particular day. The length of notice is two days if he has informed his employer of the impending birth at least three months ahead of the expected date of delivery, and five days if he has not done so.
In addition, the employer may also require the father to provide a signed statement setting out: (i) the name of the child's mother; (ii) that he is the child's father; and (iii) the expected or actual delivery date of the child. That is all the father needs to provide to be entitled to the leave; proof of pregnancy or paternity is not required.
The father may be entitled to paternity leave pay if he has been employed continuously for at least 40 weeks before any day of the leave. He would have to provide proof of fatherhood, normally the birth certificate.
The amount of pay is calculated as for maternity leave pay - that is, 80 per cent of daily average wages.
Paternity leave pay need not be paid until the employee has provided the necessary proof of fatherhood. This will, for obvious reasons, be available only after the birth. As such, paternity leave taken before the birth will become payable only some time after the birth.
The father cannot claim paternity leave pay if he fails to provide proof of fatherhood within 12 months of the date of leave, or if he ceases employment and fails to provide the proof within six months after ceasing employment, whichever is shorter.
Hong Kong employers should note that:
- The employee does not have to prove that he is the father in order to receive paternity leave, and the employer cannot demand such proof;
- The employer can require an employee seeking paternity leave to sign a statement saying he is the father and naming the mother, but cannot ask for further information concerning the mother, such as her address or identity card details; and
- The employer has no right to see the birth certificate of the child unless the father claims paternity leave pay.
Every employer in Hong Kong should consider creating a standard application form for paternity leave in which each applicant is required to name the mother and expected date of birth, and to confirm that he is the father. The form should also contain a statement that the employer reserves its right to bring action against the employee for fraud should any aspect of his paternity leave application be found to be incorrect or incomplete.
Duncan Abate is a partner at an international law firm, advising on all aspects of employment and employee benefits including discrimination, labour relations, termination of employment and the structure of employment relationships